Kerala Bar Council member moves Kerala High Court challenging new BCI rules for violating right to free speech and expression of lawyers

A petition has been filed before the Kerala High Court challenging the new amendments introduced by the Bar Council of India (BCI) barring lawyers from criticising its decisions and those of the State Bar Councils (Rajesh Vijayan v. Bar Council of India and ors).

. The petitioner, who is a member of the Bar Council of Kerala, filed the plea citing grievance with the addition of Section V (‘Duties towards Society and Bar’) and Section V-A (‘Code of conduct and disqualification for members of Bar Councils’) to Chapter II of Part VI of the Bar Council of India Rules.

. These Sections, the petition stated, have the effect of prohibiting criticism and dissent against the BCI and State Bar Councils, and demanding unquestioning acceptance of their decisions.

. BCI had published these new amendments by notification dated June 25, 2021. As per the amendments, a lawyer making any statement which is indecent or derogatory, defamatory, motivated, malicious or mischievous against any court, judge, State Bar Council or the BCI, could be suspended or have their license to practice law be revoked.

.Criticising Bar Council decision, motivated comment against judges ground for disqualification of lawyers: BCI amends Rules . Further, criticising or attacking any decision of any State Bar Council or BCI on any public domain will also amount to "misconduct", which could attract disqualification, suspension or disqualification from contesting elections to Bar Associations and Bar Councils .

. The petition filed through Advocate Santhosh Mathew stated that the newly added rules are extremely vague and have a chilling effect on public engagement and participation by Advocates.

The Supreme Court's decision in Shreya Singhal v. Union of India is cited, wherein the Court had struck down similar vague restrictions on free speech and expression since they were subjective and over-broad.

. Pertinently, it is emphasised that it is a settled position of law that the rights under Article 19 (1) (a) cannot be restricted on any ground other than those specified in Article 19(2) .

. Furthermore, it is alleged that the new rules blatantly violate decisions of the Supreme Court which have laid down the legally permissible restrictions on free speech and expression.

. The new rules, according to the petitioner, fail to recognise that criticism, disagreement, dissent etc. are all protected under Article 19 (1) (a), as clarified by the Supreme Court in decisions such as Kedar Nath Singh v. State of Bihar .

. Specifically, it is pointed out that the Supreme Court in PN Duda v. P Shiv Shanker held that administration of justice and judges are open to public criticism and public scrutiny and that judges also have their accountability to the society. Therefore, the prohibition on criticism sought by the new rules are legally impermissible, it is submitted.

. Therefore, it is submitted that barring Bar Council members from criticising decisions of Bar Councils in public, and advocates from making “motivated” statements against Bar Councils, cannot be said to be reasonable restrictions falling under any of the grounds in Article 19(2).

. The petition also raised issue with the procedure prescribed in Section V-A for declaring an Advocate or a member of the Bar Council as disqualified for contesting the elections of any Bar Association or Bar Council.

. According to the amended rules, BCI is to constitute a 3-member committee headed by a former Chief Justice or former judge of any High Court to hold an inquiry.

It is clearly stated in the new rules that “Bar Council of India shall take its decision after consideration of the report of the Committee”.

. According to the petition, this clearly implies that BCI itself makes the final decision, which violates the basic principles of natural justice .

. It is also stated that according to BCI itself, Section V is issued under Section 49(1)(c) of the Advocates Act, 1961.

As per the first proviso to Section 49(1) of the Advocates Act, 1961, Section V can be given effect to only after it has been approved by the Chief Justice of India (CJI) .

. However, according to the petition, BCI has not clarified as to whether or not it has obtained such approval from the CJI. Therefore, without fulfilling this statutorily mandated requirement, it is contended that Section V cannot come into effect.

. It is submitted by the petitioner that as long as it remains uncertain as to whether or not such approval has been obtained, Section V will continue to have a chilling effect on the free expression of advocates and Bar Council members.

. Aggrieved by the "illegal incursions sought to be made by Sections V and V-A into the fundamental freedoms and rights of the petitioner" , the following prayers have been made:

1) Issue a writ of mandamus or any other appropriate writ, declaring that Sections V and V-A of Chapter II of Part VI of the BCI Rules are unconstitutional since they are violative of Articles 14, 19 (1) (a), and 21 of the Constitution of India

2) Issue a writ of mandamus or any other appropriate writ, declaring that Section V of Chapter II of Part VI of the BCI Rules can be given effect to only after obtaining the approval of the CJI under the first proviso to Section 49 (1) of the Advocates Act, 1961

Kerala Bar Council member moves Kerala High Court challenging new BCI rules for violating right to free speech and expression of lawyers

Giti Pratap

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